Colorado relies on self disclosure when making sure doctors do not have past criminal convictions that would flag them as potentially unfit to provide care.
It’s a level of trust that puts Colorado increasingly out of step with other states. As of 2014, 45 state medical boards required criminal background checks to license a doctor.
The Denver Post previously took a look at the issue of criminal checks for nurse licensing in Colorado. That review found that the state’s loose screening of applicants allowed nurses with criminal convictions for sexual offenses, drug offenses and crimes of violence to escape detection, sometimes for years.
Now the news organization investigates licensing for doctors and other health care professionals. As in the case of nursing, Colorado officials similarly rely on honesty from applicants seeking to be licensed as doctors. The investigation found that those who have been licensed as doctors in Colorado include individuals with a history of driving under the influence, tax evasion and drug abuse.
Among the cases:
- Colorado regulators took three years to revoke the license of Terry Gardner after his conviction in 2011 on federal felony fraud charges for defrauding Medicaid and Medicare out of about $70,000. By then, regulators in Missouri and Illinois had acted to bar Gardner from practicing in those states for the fraud committed in Colorado. Missouri authorities previously revoked his medical license there in 2004 for failing to file his income taxes. Gardner never told Colorado authorities about the earlier Missouri revocation. And when they found out, they chose to just admonish Gardner with a stern letter — which occurred while he was defrauding the state’s Medicaid and Medicare programs. He did not return telephone messages seeking comment.
- A Wyoming judge placed Dr. Mark Lea on probation in 2009 after he did not contest a felony drug possession charge related to his use of the painkiller Percocet. Lea reactivated his license as a doctor in Colorado in February 2012. A year later, Colorado’s Medical Board allowed Lea, who had been abusing opioids as far back as 2005, to continue practicing medicine if he would enroll in a drug and alcohol treatment and monitoring program. The state’s medical board suspended Lea’s license in October 2015 after he failed to comply with the terms of that treatment. Lea declined to comment.
- Dr. Teresa Beer, licensed as an optometrist in Colorado, amassed five drunken driving arrests from 1996 through 2015, but it took an anonymous complaint in August 2015 for the Colorado Board of Optometry to start investigating. Beer eventually relinquished her license to practice optometry in April, but by then she had been convicted again of drunken driving, failed to comply with the terms of court-ordered probation and had been arrested for disorderly conduct. Documents show the optometry board had placed her license on suspension months earlier and had ordered her to enroll in alcohol treatment. She never complied with those orders and continued treating patients anyway, according to records. She did not return messages seeking comment.
The Federation of State Medical Boards since 1998 has recommended that medical boards conduct criminal checks on physicians seeking full or partial licensure.
“Criminal background checks are a valuable tool for state medical boards in detecting applicants for licensure with criminal backgrounds that could endanger patients within a state,” said Lisa Robin, chief advocacy officer for the FSMB. “However, state boards must have statutory authority from their state legislature in order to conduct background checks on applicants for licensure.”
News reports of doctors with past crimes helped push other states to adopt tight screening and to put in place fingerprint-based criminal checks for those seeking to be licensed as doctors.
In one case, a serial killer was able to continue practicing medicine in South Dakota and New York despite a 1985 aggravated battery conviction for poisoning co-workers in Illinois. Michael Swango, now serving three consecutive life sentences in prison after pleading guilty to murder and fraud, is believed to have fatally poisoned as many as 50 people in the 1980s and 1990s, the FBI has said.
Yet Colorado remains one of the lone holdouts.
Colorado still relies on self disclosure. State law requires applicants for a medical license to detail their past convictions on their applications. After a license is obtained, doctors are required to self report to the Colorado Medical Board any subsequent convictions.
Although the state does not conduct criminal background checks on those seeking a medical license or on licensees, it does annually check licensee names against the Colorado Sex Offender Registry, said Cory Everett, a spokeswoman for the Division of Professions and Occupations. She said officials in that division also rely on a national database that tracks adverse licensing of doctors from participating states. Law enforcement and state licensing officials also often collaborate when criminal allegations are made, she added.
“We again would reiterate that the medical board and the division of professions and occupations cannot create law,” Everett said. “We may only enforce the law as written. The Colorado General Assembly, unlike most state legislatures, has declined to adopt laws allowing fingerprint background checks for physicians.”
She said the division likely will seek such authority for physicians and other health care professions, such as nurses, in the upcoming legislative session. Colorado lawmakers did approve a change this year that requires fingerprint background checks for those Colorado doctors who want to use their Colorado license to work elsewhere in states participating in a national license compact, Everett said.
Hospitals in Colorado say they conduct their own background checks on health-care professionals when hiring, but this past year scandals rocked the health-care industry in the state, prompting calls for more rigorous screening by state officials in charge of licensing and registration. After the second health scare in seven years involving a surgical technologist with a communicable disease diverting drugs, the Colorado legislature decided to began requiring surgical techs and assistants to submit their fingerprints for registration. But that’s a level of scrutiny the legislature passed on requiring for nurses and doctors.
Past revocation records show doctors sometimes get the benefit of the doubt when allegations surface alleging wrongdoing on their part. The state’s licensing boards don’t always hear of alleged wrongdoing.
The optometry board revoked Diego Posada’s optometry license in 2011 after Commerce City police reported to the board that Posada sexually assaulted a 4-year-old girl through inappropriate touching while her mother was undergoing an eye exam at his clinic at a Walmart. But records show those allegations, which prompted Posada to plead guilty to child abuse, weren’t the first time he’d been accused of molesting a toddler during exams. In 2006, a mother made an internal complaint to Walmart that Posada had taken his penis out and rubbed it against her 7-year-old daughter during the girl’s eye exam at the Walmart clinic. That incident was not reported to law enforcement nor to the optometry board, and Walmart cleared the internal complaint.
Records show Posada pleaded guilty to felony charges of aggravated battery and resisting arrest in Broward County, Fla., and was sentenced to probation in 1989, nine years before becoming licensed as an optometrist in Colorado.
Walmart settled a lawsuit alleging it should have done more to protect patients from harm from Posada. Walmart denied any wrongdoing in the settlement but agreed to pay the mother of the 4-year-old an unspecified amount of money. Walmart contended in court filings that it should not have been liable because Posada was an independent contractor leasing space for his clinic and not a Walmart employee.
Some legislators say they want to broaden the fingerprint criminal background check requirement to other areas of the health-care field. State Rep. Susan Lontine, D-Denver, who co-sponsored the bill this year that required background checks for surgical techs and assistants, said she plans to take up the issue in the upcoming legislative session. She said all health-care professions with access to drugs should have criminal background checks.
Records show Colorado granted Dr. Bruce McFarland a Colorado medical license in 1995 despite his history of marijuana and alcohol dependence and a 1981 felony menacing charge, a 1989 assault charge and 1989 harassment and criminal trespass charges.
He also was charged with vehicular assault, resisting arrest and reckless driving in 1997.
A Colorado hospital discovered his criminal charges when McFarland applied to work there and lied about his past on the application, but McFarland still remained licensed for medicine after that discovery.
McFarland, in an interview, said he did not tell the medical board about his past charges when applying for his medical license because the regulations on disclosure were confusing. He added that it is hard to know when and when not to disclose such charges because there are differing requirements depending on whether a person is applying for hospital staff privileges, insurance for a medical practice or a medical license.
“Each time you apply, depending on what you’re applying for, all different questions come up and all have different wording,” McFarland said. “And sometimes a person has problems with consistency.”
He said he has gotten better at self disclosure with the medical board as the state’s rules became clearer to him over the years — though for now he is unlicensed.
In 2007, McFarland failed to properly supervise a physician assistant, which prompted the Colorado Medical Board in 2007 to appoint a monitor to review his practice for five years, records show.
Still, issues continued.
In 2012, the owners of a clinic where McFarland worked pleaded guilty to conspiracy to commit health care fraud through false billings. Records show the scheme involved McFarland’s patients and an unlicensed provider seeing them during McFarland’s supposed treatment times.
Once again, McFarland received a pass — this time in the form of a letter of admonition from the medical board.
In March 2015, he relinquished his license after the medical board determined he had prescribed numerous narcotics and painkillers to his girlfriend, a person he knew was abusing controlled substances.
Despite his many issues, McFarland can apply for another Colorado medical license in March 2017 under an agreement he reached with the medical board.
